Thursday, March 17, 2005

Righting the law by writing it ourselves

Mr. Patterico has been riding hard on the subject of freedom of speech since the recent comments by the FEC's Bradley Smith. As have others. But Mr. Patterico was not impressed with the subsequent proposal to send a petition to the FEC asking for certain exemptions -- his major objection being, in his words:

"In my view, political speech is speech at the core of the First Amendment. Neither the FEC nor any other government agency has any right to regulate it in any way. When my right to engage in such speech is threatened, my impulse is not to seek out a law carving out some exception for my speech. My impulse is to tell those responsible that they can go to hell."

or more concisely in his later post noting a Beldar e-mail: "I don't think citizens should ever ask their government for permission to engage in political speech."

I sympathize with Mr. Patterico. I first read the petition when Instapundit noted that it existed and that he signed it. I wasn't impressed with the 'asking' tone of the petition, either, though that is what is a petition. But I understand the intent, an understanding Beldar noted in an e-mail to Patterico:

"I almost decided not to sign on for the same reasons you express, Patterico, and I certainly respect your decision. I too wish that Congress would change the statute and that the Supremes would change their precedent upholding it. Ultimately, however, I focused on the target of this petition, the FEC, which doesn't have the power to do either. Rather, it has some sort of mandate from Congress that, for now, the courts have refused to hold unconstitutional. So the FEC will be regulating some things, and at a minimum, it will be regulating paid political advertising on the internet. I decided that I could and should urge the FEC not to push things farther in the "wrong" direction, notwithstanding my frustrations with Congress and the Supremes."

McCain-Feingold is the ultimate problem but until such time as this problem is taken care of, petitioning the FEC to go slow is a good interim action to prevent a condition which is worse. And, though it is not for every one, humbly 'asking' via petition is a time honored first step and rooted in our concepts regarding freedom and the redressing grievances when our rights are tread upon:

"In every stage of these Oppressions We have Petitioned for Redress in the most humble terms." * [Emphasis: mine]

So I consider this to be, at best, a temporary defensive step until other action can be taken and, at worst, just another example "that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." *

I think it is time for "righting" and it ought to take the form of repeal of McCain-Feingold but questions do remain whether there is any regulation in McCain-Feingold worth or necessary to saving. I certainly don't know and Xlrq at Damnum Absque Injuria also asks about that here.

So I offer a suggestion. Since an overabundance of members Congress are blind to the fundamental rights about which this nation was founded, and the President is blind to his oath to preserve and protect these rights, and too many of the Supreme Court justices are blind to the intent of the crucial words and phrases of the First Amendment, it behooves us to take matter into our own hands. Write a bill which repeals McCain-Feingold, completely, and which comprises its own regulations of campaign finance, where campaign finance is really needed. Here is an outline of an approach:

1) Create working groups for the process: one to collect data, one for organizing data, one for composing the bill, one to collate comments, and one to address comments.

2) Set up a Wiki-style format and location for the work to be done, transparently.

3) Promulgate the final copy with commentary on its provisions. [Ed. inquiry: Could this bill replace all campaign finance law, thus making things straightforward, simple and easily referrable?]

4) Prepare a petition in which to present this bill to Congress for (minimal) deliberation, prior to passing.

This process would hardly have been considered before the advent of the Internet considering the organizational and communication work required to make it from a grass- roots to a national effort. And the Internet provides access to considerable, if not all, data needed to make the work comprehensive. It also has easy access to the expertise (on a voluntary basis, of course) needed to run the operation and prepare a fine product. Communication would be a breeze, though we might need some honorary special representatives to promote the cause to the wider and less Internet connected public via the established communication media run by the non-pajama clad. We could call them Internet Senators and Representatives and then, maybe, we could cajole James Lileks into becoming a Senator after all.

Approaching the question of what to do about preserving free speech in this way would have great benefits:

1) First, it would focus all the energies that are currently being spent punditing on the travesty of the McCain-Feingold and its growing dangers.

2) The work would create a fair, reasonable and comprehensive bill (at least, I think it would considering the people I have come to know through reading their blogs.) Can it be worse?

3) It would give those on all sides of the multisided aisle of the Internet's political world a chance to come together by the joint development of a bill, satisfactory to most, if not all.

4) It will add a new dimension to the idea of participatory and representative democracy, one that should get serious attention inside the beltway.

5) It will keep our more hard-headed friends and compatriots, like Mr. Patterico, out of court and possibly out of jail and/or the poor house.

I'm sure others can think of more benefits.

I like to think the Internet, in general, and the blogosphere, in particular, can be more effective in connection with righting wrongs and expanding freedom, particularly freedom of speech. It's already done much in service to the truth, much, much more, I think, than it has in spreading lies and falsities as the some people in the more established communications market like to say. And it will but another example to those freedom lovers the world over that, by collective effort, freedom can be wrested from encroaching government thereby inspiring, encouraging and helping them in their own efforts.